Wieland v. Kobick

• Decision Date: 19 May 1884
• Citation: 110 Ill. 16,51 Am.Rep. 676,1884 WL 9837
• Parties: ANNA C. WIELAND et al.v.MARGARETHA KOBICK.
• Court: Illinois Supreme Court

110 Ill. 16

1884 WL 9837 (Ill.)

51 Am.Rep. 676

ANNA C. WIELAND et al.

v.MARGARETHA KOBICK.

Supreme Court of Illinois.

Filed at Ottawa May 19, 1884.

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Mr. A. A. EXLINE, for the appellants:

The evidence is not sufficient to justify a recovery against all the defendants, there being none to connect the three other defendants with Anna C. Haas.

The court below held that plaintiff was not estopped in a court of law to deny her infancy, when in her deed she states the fact to be that she was of age. At the age of seventeen years and six months she knew that she was not of age.

It is said in Mathews v. Cowan, 59 Ill. 346, that an infant is responsible for his torts and frauds, and in Davidson v. Young, 38 Ill. 150, it is very clearly intimated that the court would hold the infant estopped from pleading infancy, where, by his representations that he was of age, he induced another to purchase from him. Such a holding is clearly sustained in Kilgore v. Jordan, 17 Texas, 341. Mr. C. C. MARCH, and Messrs. RUBENS, MCGAFFEY & AMES, for the appellee:

Defendants below having pleaded the general issue only, it was not necessary for plaintiff to prove that defendants were in possession of the premises, or claimed an interest or title therein. Rev. Stat. 1874, chap. 45, sec. 22.

A defendant is not estopped from setting up infancy as a defence to a contract, by his fraudulent representations that he was of full age. Merriam v. Cunningham, 11 Cush. 40; Tyler on Infancy and Coverture, sec. 54; Brown v. McCune, 5 Sandf. 228; Lackman v. Wood, 25 Cal. 147; Cook v. Toombs, 36 Miss. 685; Studwell v. Shapter, 54 N. Y. 249; McCoon v. Smith, 3 Hill, 147; Curtin v. Patten, 11 S. & R. 305; Conroe v. Birdsall, 1 Johns. 127; Tucker v. Moreland, 10 Pet. 58; Conrad v. Lane, 26 Minn. 389; Burley v. Russell, 10 N. H. 184.

Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court:

This was an action of ejectment, for the recovery of a certain lot of land in an addition to Chicago. There was recovery by the plaintiff, and the defendants appealed.

On the trial in the court below there was introduced in evidence, in defence, a deed from the plaintiff to Emily C. Cummings, in which it is recited that “Margaretha David, (the plaintiff,) unmarried, and of age,” for $3500 conveys and quitclaims to Emily C. Cummings the property in question, and a deed from Emily C. Cummings to Anna C. Haas, one of the defendants. The plaintiff then introduced evidence to prove that at the date of the deed to Emily C. Cummings the plaintiff was a minor, and under the age of eighteen years, and that after coming of age she filed her disaffirmance of the deed, and a demand for possession of the premises, in the recorder's office of Cook county. It is objected that the evidence is not sufficient to justify a recovery against all of the defendants, as there is no evidence to connect the three other defendants with Anna C. Haas. Defendants having pleaded the general issue only, it was not necessary, under the statute, for plaintiff to prove that defendants were in possession of the premises, or claimed an interest or title therein. Rev. Stat. 1874, chap. 45, sec. 22.

The only other question which appellants make upon the record, is as to the effect of plaintiff's deed to Emily C. Cummings,--whether or not plaintiff was estopped from disaffirming such deed made while she was a minor, she having stated therein that she was of age. The authorities seem abundantly to establish that a defendant...